Email Sent to Ted Olson

Below is an email I sent to Ted Olson in response to a Reuter press article, entitled:

Bush v. Gore lawyers take on gay marriage ban

I am writing this email to express my very strong displeasure with your efforts to legalize same sex marriage nationwide. Many of us who have followed this issue closely recognize the 14th Amendment implications of unilateral state actions,
first within state courts and more recently within state legislatures, to change the state of the law on this matter. Indeed, my own support for the Federal Marriage Amendment and disagreement with those conservatives who take a high view of
state sovereignty is grounded in my own federalist convictions that, eventually, this issue will become a matter of national concern. That said, the very worst thing that possibly could happen would be for the Supreme Court to impose a decision on the nation at large on the basis of 14th Amendment arguments, or even full faith and credit. This has horrible consequences for both our nation and for the families and individuals impacted by such a decision.

First and foremost, it poses a real challenge to the legitimacy of the constitutional structure that is so very vital to our survival as a nation of free people. At the age of 55, I have seen this national drift farther and farther apart into a maze of party politics, ethnic strife, class warfare, and disintegrating families. While some argue, indeed some do not even bother to argue, that
such a loosening of civil society is the price of equality, and that the ends justify the means, I do not think it is questionable that there are limits to the ability of the courts to mete out fairness at will. The current controversy over Judge Sotomayor and Ricci v. DeStefano stands as an example of what happens when the courts exceed their proper sphere. (On this subject, I am not criticizing
Judge Sotomayor's position, only pointing out that the expansion of judicial power only leads to more litigation and increasingly complex cases.) As a federalist conservative who ranks Alexander Hamilton, Henry Clay and Theodore Roosevelt among his political heroes, I cannot abide the misutilization of the 14th Amendment to achieve a result that will inevitably degrade the public's respect for our form of
government, further demoralize our citizenry, and exhaust all branches and levels of government in the making, enforcing, and interpreting of laws that are increasingly unjust, unenforceable, and unintelligible.

Secondly, I believe that the advocates of same sex marriage ignore the practical consequences of its legalization. There are many areas where the state of the law with respect to inheritance rights, adoption, and child custody would be impacted by a Supreme Court ruling to legalize same sex marriage in all states. State law is in no way consistent across the nation in these areas, and I believe that a Supreme Court decision to legalize same sex marriage would throw the state of the law on these matters into massive disarray, in a way that would cause even greater inequity than would result from accepting the current rather unsatisfactory situation
in which state law differs on same sex marriage. There are also matters turning on church-state relations, since many of the Protestant churches are deeply divided on this subject, and a significant change in the state of civil law will deepen this schism, as well as impose inequities in cases where these churches remain divided within a single ecclesiastical structure.

As you may note, I do not find it appropriate here to argue this issue on grounds of morality or on a theory of natural law. But there is a tension that exists between an ethical position that defines morality as the will of the society as reflected in the opinion of the majority, and a moral view that makes good and evil to be independent of custom or tradition. My position as a federalist and a conservative is simply that if the state must make moral choices and ignores the opinions of the majority of its people, or even a substantial minority, it places its legitimacy at risk and inevitably is reduced to the rule of force rather than reason to uphold its sovereignty and the integrity of its laws.

Therefore, sir, I must confess the anger I feel towards you and the role you are playing, since I cannot believe that you have failed to think these matters through before choosing to act. These are very trying times in which we live as Americans today. We face many challenges to the integrity, freedom, prestige and well-being of our nation. We do not need this.

Regards,

William C. Riggs
Fredericksburg, VA